LJA Chapter 4

What is Legal Research?

• Finding the right law for the situation
• Locate the correct statute that applies to the situation your client has brought you
• Locate case law with similar facts

Where to Start?

• Primary Sources: Resources that provide the actual law
• Secondary Sources: Tools used to understand the law

Primary Sources

• The resources that provide the actual law
• Statutes
• Case Law
• Constitution

Secondary Sources

• Tools used to understand the law
• Dictionaries
• Encyclopedia
• Form Books
• Periodicals
• Treatise
• Digests
• Citators

What and Why are We Researching?

• FACTS: What happened?
• Ultimately applying the law to the facts of your case
• Where do facts come from?
  • Reports
  • Client Documents
  • Witness Interviews
  • Client interviews

Facts and Precedent

• Precedent: The example of an earlier court for similar cases or similar legal questions that arise in later cases
• What is similar between your case and previous cases dealing with the same issue
• It could potentially give you the tools you need to win your argument
• It could provide you with the facts you need to argue why your case is different
• Facts (cont.): Attempt to identify the ISSUE
• A question that must be decided by a court
• In evaluating the facts, attempt to find the RELEVANT FACTS
• Relevant facts: Evidence that relates directly to the issue; a relevant fact is a fact that is tied directly to the client’s legal question

Facts (cont.)

• Relevant Facts: These are key or significant facts
• Explanatory Facts: These facts help the researcher understand what happened. They are not relevant, in a legal sense, to the issue
• Unnecessary Facts: The information in this category is irrelevant to the legal issue

Example

• Officer Bruce Wayne is driving down Kennedy boulevard in a marked patrol car. While driving, Wayne observes a purple and green sedan fail to stop at a red light at Kennedy and Ashley. Officer Wayne activates his red and blue traffic light to initiate a traffic stop. The purple and green car pulls off to the side of Kennedy next to the University of Tampa. Officer Wayne approaches the car and makes contact with the driver. The driver introduces himself as Mr. Joker. While speaking with the driver, Officer Wayne observes a firearm and five kilogram sized bricks of cocaine on the front passenger seat.

Example: What facts would be relevant with respect to if Mr. Joker committed the traffic infraction?

• Relevant Fact: The officer observed the car run a red light.
• It’s against the law to not stop at a red light. This is the ultimate issue: Did the driver run the red light?
• Explanatory facts: All of the setup facts about the location of the traffic infraction. They set the scene, but for this case and the questions asked, are not of legal significance.
• Unnecessary facts: Details concerning the names of the parties and the color of the car. Five Kilograms of Cocaine and the firearm.

It Depends!

• Case-by-Case basis
• This is not a formula
• Know what question you’re answering

Where do we start?! (Secondary Sources)

• Secondary sources are a good place for a researcher/lawyer to familiarize themselves with a new area of law

Legal Dictionaries

• A book that contains definitions of legal words
• Example: Bifurcate
  • To sever from the trial; in family law; it means the divorce or dissolution may be granted, but the parties will need to come back to court to adjudicate another issue (e.g., their property issues)
• Black’s Law Dictionary
• Legal Encyclopedia: Collection of legal information; a secondary source of the law

Finding Tools

• Resources used to locate primary and secondary sources
• IE: Digest: a document that has a summary of relevant case law
• The better finding tools will have ANNOTATIONS: Brief summary of a statute or a case
• Form Books: A legal resource filled with sample forms and explanations on how and when to use the forms; some are online in legal databases

Legal Periodicals

• Variety of publications published at a time interval (weekly, monthly, semiannually, annually) covering various legal topics
• Some cover a wide array of issues; Others are topic specific
• Law Reviews: A publication containing articles written by judges, professors, and attorneys; it also contains case summaries written by law school students. Most law schools publish one or more periodic law reviews each year.

Treatises

• A book or set of books that reviews a special field of law; a summary of the law; often called a horn book
• Example: Federal Practice and Procedure

Florida Evidence Digests

• Book or set of books that indexes case law by topic
• Secondary source that leads directly to the primary source case law
• Digests may contain a brief summary of the caselaw

West’s Supreme Court Digest

• West’s Supreme Court Digest: Secondary (or possibly primary) source depending on context

Case Law

• Case Law: Collection of reported cases
• Key Terms:
  • Reporters
  • LexisNexis: Fee-based computerized legal research
  • Westlaw: Fee-based computerized legal research by Thomson Reuters West
  • Bloomberg Law: Fee-based computerized legal research by Bloomberg
• All describe places a lawyer would go to find the law

Case Law (Written Opinion)

• Written opinion by a judge explaining its reasoning
• Components:
  • Facts
  • Rules of Law
  • Court’s holding
• Rule of Law: Legal principles applied to the facts; generally derived from statutes, case law, and the Constitution

Holding

• The legal principle to be taken from the court’s decision
• What effect the court’s decision means for future cases
• Example: The Supreme Court ruled that officers need reasonable suspicion to conduct a brief investigatory detention of possible suspects
• Future courts looking at similar facts will look to see if officers had reasonable suspicion
• Precedent: Example set by the decision of an earlier court for similar cases or similar legal questions that arise in later cases
• Where to find caselaw?
  • Caselaw Reporters: Books filled with decisions of various courts
  • Regional Reporters: A set of published volumes of cases by courts in specific regions of the United States (e.g., Pacific Reporter; North Eastern Reporter; Florida is Southern Second (So.2d))
  • Westlaw, LexisNexis, Bloomberg Law: Subscription services that allow access to caselaw
  • CDs and DVDs; Internet
  • Cases are generally public documents; anyone can publish cases. Depending on the site, the cases may not be organized or easily accessible

Federal Case Law

• Where is it published? It depends on the Court
• Supreme Court
• Circuit Court of Appeals
• District Court
• Publication options:
  • United States Reports (official publication of the Supreme Court)
  • Supreme Court Reporter (Westlaw unofficial publication)
  • Lawyers’ Edition (LexisNexis unofficial publication)
  • Bloomberg Law (unofficial)
• The text of the opinion is identical in all publications

Supreme Court Citation (example)

• Meritor Savings Bank FSB v. Vinson, $477\,U.S. 57$, $106\,S. Ct. 2399$, $91\,L.Ed. 2d. 49$
• Year: $1986$
• Components:
  • Parties: Meritor Savings Bank FSB v. Vinson
  • Reporters: $477 U.S. 57$ (United States Reports)
  • $106 S. Ct. 2399$ (Supreme Court Reporter) (Westlaw)
  • $91 L.Ed. 2d. 49$ (Lawyers Edition 2nd) (LexisNexis)
• What the numbers indicate:
  • $477$ = Volume number in the reporter
  • $U.S.$ = United States Reports (official reporter)
  • $57$ = Page where the opinion starts in that volume
  • $106$ = Volume in the Supreme Court Reporter
  • $S. Ct.$ = Supreme Court Reporter
  • $2399$ = Page where the opinion starts in that reporter
  • $91$ = Volume in the Lawyer’s Edition
  • $L.Ed. 2d.$ = Lawyers Edition, 2nd series
  • $49$ = Page where the opinion starts in that reporter

Lower Federal Courts

• Court of Appeals
  • Federal Reporter 3d
  • Example citation format: X v. Y, XXXX F.3d XXXX (circuit year)
• District Courts
  • Federal Supplement
  • Example citation format: X v. Y, XXXX. F. Supp. XXXX (District Court, Date)
• Jurisdiction: Ensure your case law is from the correct jurisdiction
  • If you’re in Florida state court, you want case law from Florida
  • If you’re in federal court, you want case law from the circuit with jurisdiction over that district

State Case Law

• Found in state and regional reporters
• Florida example: Official Reports, Florida Statutes (Fla. Stat.), Florida Appellate Reports; Unofficial Reports (Florida Reporter)
• How to Read Case Law (p.82-83):
  • Facts: What set of circumstances resulted in this controversy requiring a judge
  • Judicial History: What happened in the lower court? Did the defendant lose and appeal?
  • Issues: What is the legal issue the court needs to resolve?
  • Rules: What law applies?
  • Analysis: How the court comes to its decision
  • Conclusion: The court’s decision

I.R.A.C. (Issue, Rule, Analysis, Conclusion)

• Issue: The legal question to be decided
• Rule: The controlling law or standard applicable to the issue
• Analysis: How the facts apply to the rule
• Conclusion: The court’s ruling
• Briefs and Case Briefs
  • Brief: A written document that might contain a summary of the facts, issues, rules, and analysis used by a court and a comparison with a client’s facts
  • Case Briefs: A short summary of a published case
  • Don’t confuse with Appellate Briefs!!!

Stare Decisis and Precedent

• Important to keep in mind when researching
• How do the facts of your case relate to previous rulings on the issue?
• Statutory Law:
  • Statutes or Codes
  • A legislatively created law; a written enactment
  • Examples: United States Code (U.S.C.), Florida Statutes (Fla. Stat.)
  • When possible, generally the first place you look
• Annotated Statutes:
  • Statutes that include text interpreting the statute and occasionally relevant case law dealing with the statute
• Pocket parts:
  • A removable supplement to a volume of statutory law; includes all changes or additions to the material contained in the hardbound edition
• How does statutory law work?
  • Look at the law. Does it apply to my facts?
  • For example: $Fla. Stat. 784.03$
  • $(1)(a)$ The offense of battery occurs when a person:
  1. Actually and intentionally touches or strikes another person against the will of the other; or
  2. Intentionally causes bodily harm to another person.
  • Does this law fit my facts?

Finding Law (Online)

• Computer Assisted Legal Research (CALR): Legal research done with the use of a computer; how most research is done in the modern era
• Subscription Based Services: $Westlaw$, $LexisNexis$
• Full Text Searching: Legal research method utilized in computer-assisted legal research, where all documents in a database are searched for certain words
• Case Validation: $Westlaw$ (KeyCite) [yellow or red flag], $LexisNexis$ (Shepards) [yellow or red triangle]
• Tool for validating case law. Use these to ensure the case has not been overruled or possibly subject to an overruling

Free Internet Legal Research

• Laws and Cases are generally available
• Secondary Sources are more scarce
• Copyright law: protection for authors of original works of scholarship
• Difficulty in searching due to volume of materials; a Google search could yield billions of results
• How to search?
  • Query
  • Keywords: describe important aspects of a research question
  • Example keywords: $Probable ext{ }Cause$, $Reasonable ext{ }Suspicion$

Types of Searching

• Natural Language Search: Uses plain English
• Boolean: A special logic used in computerized legal research using connective words
• Connectors: Words such as and or used in a search query to show the relationship between key words or terms
• Boolean (cont.)
  • If search terms contain the word “and” the research service will return documents that include both words
  • If search terms contain the word “or” the research service will return documents that contain either word
• Wildcard: Symbol used in a word that substitutes for any letter, often an asterisk (*)
  • Example: Fir* = Fire, Fires, Firing, Fired
• Precision is key, can narrow results
• Keywords within the same sentence
• Keywords within the same paragraph
• Keywords within a certain number of words of each other